Judge: Melvin D. Sandvig, Case: 21CHCV00556, Date: 2023-11-30 Tentative Ruling

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Case Number: 21CHCV00556    Hearing Date: November 30, 2023    Dept: F47

Dept. F47

Date: 11/30/23 (continued from 11/17/23)

Case #21CHCV00556

MOTION TO VACATE DISMISSAL & FOR ENTRY OF JUDGMENT

Motion filed on 7/13/23.

MOVING PARTY: Plaintiff American Express National Bank

RESPSONDING PARTY: Defendant Adelaida Rodriguez

NOTICE: ok

RELIEF REQUESTED: An order vacating the dismissal entered in this case on 1/21/22 and entering judgment in favor of Plaintiff American Express National Bank and against Defendant Adelaida Rodriguez.

RULING: The motion is granted.

SUMMARY OF FACTS & PROCEDURAL HISTORY

On 7/27/21, Plaintiff American Express National Bank (Plaintiff) filed this action against Defendant Adelaida Rodriguez (Defendant) for common counts.  On 9/3/21, Defendant answered the complaint.  On 1/21/22, a Stipulation and Order to dismiss the case and retain jurisdiction pursuant to CCP 664.6 was entered.  (Dyle Decl., Ex.A). 

Pursuant to the stipulation/settlement agreement, the parties agreed that with regard to Defendant’s account ending in 2003, Defendant is indebted to Plaintiff in the amount of $100,809.24.  (Dyle Decl., Ex.A).  Defendant agreed to pay that amount as follows: Defendant agreed to pay Plaintiff consecutive monthly payments of $1,000.00 due on or before the 15th day of each and every month commencing January 2022 through and including December 2022.  Id.  Thereafter, Defendant agreed to pay Plaintiff consecutive monthly payments of $3,700.00 due on or before the 15th day of each and every month commencing January 2023 through and including November 2024.  Id.  Then, one final payment of $3,709.24 was due on or before December 15, 2024.  Id.  If Defendant failed to comply with the terms of the settlement agreement, Plaintiff was required to provide Defendant with written notice of the default and allow Defendant 14 days to cure same.  Id.  If the default was not cured, the parties agreed that the Court could entered a judgment against Defendant in the amount of $100,809.24 plus costs less any amounts Defendant had paid toward the settlement.  Id.  The parties further agreed that the Court could dismiss the case and retain jurisdiction pursuant to CCP 664.6.  Id.

Defendant defaulted on the settlement agreement by failing to make any payments.  (Dyle Decl.).  On 1/25/22, Plaintiff sent Defendant notice of the default.  (Dyle Decl., Ex.B).  Defendant has not cured the default.  (Dyle Decl.).  Plaintiff has incurred costs of $563.00.  Id.

On 7/13/23, Plaintiff filed and served the instant motion seeking an order vacating the dismissal entered in this case on 1/21/22 and entering judgment in favor of Plaintiff and against Defendant.  Defendant has not opposed or otherwise responded to the motion. 

ANALYSIS

CCP 664.6(a) provides:

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Based on the settlement agreement/stipulation entered on 1/21/22 and Defendant’s default thereunder and failure to cure same after being given notice, Plaintiff is entitled to have the dismissal set aside and have judgment entered in its favor and against Defendant as requested. 

CONCLUSION

The motion is granted.